Brittany Haglund, Widener Law '11, is President of Widener's Military Law Society and a military spouse. She writes about Congress' recent repeal of President Clinton's Don't Ask, Don't Tell Policy...
On December 18, 2010, Congress voted to repeal President Clinton's Don't Ask, Don't Tell policy (DADT). Six days later, a smiling President Obama signed the repeal. This should be a major victory but it leaves me feeling dissatisfied: haven't we been here before? Our country always seems to be struggling with discrimination of some type in the military. Prior to the Korean War, racial segregation was the norm, and it took a second world war for permanent positions in the military to be made available to women. Now, proponents of DADT claim that discrimination of openly gay servicemembers is necessary to ensure that the morale and cohesion of the military remains strong. However, are these not the same declarations once made by supporters of racial segregation and an all-male military? With the magic of hindsight, we can see that the few hiccups that occurred after outlawing racial and sexual discrimination in the military did not single-handedly destroy the group mentality necessary for an efficient military.
Even with all of the historical evidence, supporters of DADT fear the consequences of the repeal will be disastrous. America's military is comprised of volunteer members, the majority of whom are arguably from religious and conservative areas of the country. Without DADT, it is feared that the pool of volunteers may dry up because they will be unable to reconcile their beliefs with the new law while continuing to serve. Others save their reservations for those serving in combat zones, arguing that hate crimes against homosexuals will run rampant and numerous lives will be lost because servicemen and servicewomen will not trust each other. Again, it is unnecessary to engage in these what-ifs because history has already shown us that the military will endure. After President Truman signed an executive order ending racial segregation in the military, there was not a significant drop in the number of troops who voluntarily enlisted, although there is an argument that the Vietnam draft a few years later ameliorated any possible decrease in troops. As for troops in combat conditions, there is a famous quote from the Second World War that I believe applies equally to the situation at hand. The quote states: "There are no atheists in foxholes." Well, I say: "There are no hate mongers in combat." This may be a slight exaggeration, but it seems that with the type of guerrilla warfare soldiers face in the Middle East, it is doubtful they will have the time or energy to invest in hating someone who is not a threat to their mission. After all, the enemy of my enemy is my friend.
Regardless of DADT supporters' views, it has been repealed and rightly so for both constitutional and moral reasons. Prior to the Supreme Court' decision in Lawrence v. Texas, 539 U.S. 558 (2003), DADT only had to survive a lenient standard of review to be upheld. This is because in Bowers v. Hardwick, the Supreme Court failed to find a fundamental right to engage in homosexual sodomy. However, in Lawrence the Court found a Texas law outlawing homosexual sodomy was unconstitutional because "[t]he right to liberty under the Due Process Clause gives [homosexuals] the full right to engage in their conduct without the intervention of the government." While the message from Lawrence is clear - homosexual behavior cannot be made unlawful simply because some in the community may find it immoral - the standard of review when evaluating laws against homosexual behavior is still fuzzy at best.
DADT further complicated the assessment of laws against homosexual activities because it only applied to military members. Traditionally, the military is entitled to a great deal of deference, even though it is difficult to precisely measure the leniency of judicial review because it has varied throughout the years depending on the Court. A lenient application of constitutional standards in the military is claimed to be necessary to national security; the military requires obedience and discipline for lack of obedience. To ensure that these goals are met it may sometimes be necessary for a law that would be unconstitutional when applied to civilians to be permissible when applied to service members.
However, since Lawrence was decided, it has been argued that such a deferential judicial standard is no longer appropriate. The current argument is that even though the military should be afforded some deference, when a law seeks to regulate a person's liberty interest, it will be upheld when narrowly tailored to support only the most compelling interest. This begs the question: were the interests put forward by the government and DADT supporters enough to satisfy such a demanding test, and if so, couldn't we have found other ways to meet these interests without systematically discriminating against thousands of service members?
As a military spouse, I see that life in the military depends on order and keeping up the morale of the troops, so I understand why proponents of DADT claim order and morale as their compelling interests. I take issue with the argument that allowing homosexuals to be open about their sexual preferences will destroy order and morale and that DADT is the only way to uphold order and morale. Most courts continue to dance around these issues, always deferring to Congress or the military when it came to military matters, when they should have applied the heightened standard of review from Lawrence and let the chips fall where they may. I realize the point seems moot now that DADT has been repealed, but since there was never widespread recognition that DADT was unconstitutional it can be implemented again. Our current President rode into the White House with promises of repealing DADT; who's to say our next leader will not advocate for its return?
Even if the policy is never again implemented, there are many questions that have been left unanswered because the policy's constitutionality was never decided. For instance, what will the quality of life be like for homosexuals in the military who want to live openly? Straight military members, unless the duty assignment is unaccompanied, are free to take their spouses with them to their new duty station, and the military either provides housing on base or a basic housing allowance to live off of base. Since the federal government still does not recognize gay marriages and the military does not recognize relationship statuses below marriage, where does this leave gay service members with significant others? Sure, they can serve in the military while proclaiming their sexual orientation, but they will still face daily discrimination. Supporters of DADT will find other ways to relegate homosexuals in the military to a inferior status be it through restricted the housing of these service members or through the types of rates they can serve in. So while DADT has been repealed, I am left dissatisfied, as I am sure many others are as well. DADT's repeal is not enough because homosexuals will continue to face discrimination until the constitutionality of such discrimination is addressed by the courts. Once the issue of constitutionally is addressed it will no longer be necessary to fight for these service members' rights to live with whom they choose, be seen in public with their significant other, or even post a picture of their loved one above their bunk.